(2) An examiner shall ask to be withdrawn from any proceeding in which he deems himself disqualified for any

reason.

(c) Conduct. The examiner shall conduct the proceeding in a fair and impartial manner, and save to the extent required for the disposition of ex parte matters as authorized by law, he shall not consult any person or party on any fact in issue unless upon notice and opportunity for all parties to participate.

(d) Powers. Subject to review by the Secretary as provided elsewhere in this part, the examiner, in any proceeding assigned to him, shall have power to: (1) Rule upon motions and requests; (2) set the time and place of hearing, adjourn the hearing from time to time and change the time and place of hearing; (3) administer oaths and affirmations and take affidavits; (4) examine witnesses and receive evidence; (5) take or order, under the facsimile signature of the Secretary, the taking of, depositions; (6) admit or exclude evidence; (7) hear oral argument on facts or law; and (8) do all acts and take all measures necessary for the maintenance of order and the efficient conduct of the proceeding.

(e) Who may act in absence of the examiner. In case of the absence of the examiner or his inability to act, the powers and duties to be performed by him under this part in connection with a proceeding assigned to him may, without abatement of the proceeding unless otherwise directed by the Secretary, be assigned to any other examiner.

§ 123.9 Prehearing conferences.

In any proceeding in which it appears that such procedure will expedite the proceeding, the examiner, at any time prior to the commencement of the oral hearing, may request the parties or their counsel to appear at a conference before him to consider (a) the simplification of issues; (b) the necessity or desirability of amendments to pleadings; (c) the possibility of obtaining stipulations of fact and of documents which will avoid unnecessary proof; (d) the limitation of the number of expert or other witnesses; and (e) such other matters as may expedite and aid in the disposition of the proceeding. No transcript of such conference shall be made, but the examiner shall prepare and file for the record a written summary of the action taken at the conference, which shall incorporate

any written stipulations or agreements made by the parties at the conference or as a result of the conference. If the circumstances are such that a conference is impracticable, the examiner may request the parties to correspond with him for the purpose of accomplishing any of the objects set forth in this section. The examiner shall forward copies of letters and documents to the parties as the circumstances require. Correspondence in such negotiations shall not be a part of the record, but the examiner shall submit a written summary for the record if any action is taken.

§ 123.10

Any

Oral hearing before examiner. (a) Request for oral hearing. party may request an oral hearing on the facts by including such request in the order to show cause or the answer or by a separate request in writing filed with the hearing clerk. Failure to request an oral hearing within the time allowed for the filing of the answer shall constitute a waiver of such hearing, and the party so failing to request an oral hearing will be deemed to have agreed that the proceeding may be decided upon a record formed under the shortened procedure provided in § 123.13. Waiver of oral hearing shall not be deemed to be a waiver of the right to make oral argument before the Secretary upon exceptions to the examiner's report. Such argument will be allowed in accordance with the provisions of § 123.15.

(b) Time and place. If and when the proceeding has reached the stage where an oral hearing is to be held, the examiner, giving careful consideration to the convenience of the parties, shall set a time and place for hearing and shall file with the hearing clerk a notice stating the time and place of hearing. If any change in the time or place of the hearing is made, the examiner shall file with the hearing clerk a notice of such change, which notice shall be served upon the parties, unless the change is made during an oral hearing and made a part of the transcript.

(c) Appearances-(1) Representation. in any proceeding under the regulations, the parties may appear in person or by counsel or other representative. The Deputy Administrator, if represented by counsel, shall be represented by an attorney assigned by the Solicitor of the Department. Persons who appear as counsel or in any other representative capacity at a hearing must conform to

the standards of ethical conduct required of practitioners before the courts of the United States. Whenever the Secretary finds, after notice and opportunity for hearing, that a person, who is acting or has acted as counsel or other representative for another person in any proceeding before the Secretary, is unfit to act as such counsel or other representative, he will order that such person be precluded from acting as counsel or other representative in any proceeding under this part. The procedure in such case will be governed by the applicable provisions of the rules of practice in this part.

(2) Failure to appear. (1) If any party to the proceeding, after being duly notified, fails to appear at the hearing. he shall be deemed to have waived the right to an oral hearing in the proceeding. In the event that a party appears at the hearing and no party appears for the opposing side, the party who is present shall have an election whether to present his evidence, in whole or in part, in the form of affidavits or by oral testimony before the examiner.

(ii) Failure to appear at a hearing shall not be deemed to be a waiver of the right to be served with a copy of the examiner's report and to file exceptions and make oral argument before the Secretary with respect thereto, in the manner provided hereinafter.

(d) Order of proceeding. Except as may be determined otherwise by the examiner, the complainant shall proceed first at the hearing.

(e) Evidence—(1) In general. (i) The testimony of witnesses at a hearing shall be upon oath or affirmation and subject to cross-examination.

(ii) Any witness may, in the discretion of the examiner, be examined separately and apart from all other witnesses except those who may be parties to the proceeding.

(iii) The examiner shall exclude evidence which is immaterial, irrelevant, or unduly repetitious, or which is not of the sort upon which responsible persons are accustomed to rely.

(2) Objections. (i) If a party objects to the admission or rejection of any evidence or to the limitation of the scope of any examination or cross-examination, he shall state briefly the grounds of such objection, whereupon an automatic exception will follow if the objection is overruled by the examiner. The transcript shall not include argument or debate thereon except as ordered by the

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examiner. The ruling of the examiner on any objection shall be a part of the transcript.

(ii) Only objections made before the examiner may subsequently be relied upon in the proceeding.

(3) Depositions. The deposition of any witness shall be admitted, in the manner provided in and subject to the provisions of § 123.11.

(4) Affidavits. Except as is otherwise provided in the rules in this part, affidavits may be admitted only if the evidence is otherwise admissible and the parties agree that affidavits may be used.

(5) Proof of documents. A true copy of every written entry in the records of the Department, made by an officer or employee thereof in the course of his official duty, and relevant to the issues involved in the hearing, shall be admissible as prima facie evidence of the facts stated therein, without the production of such officer or employee.

(6) Exhibits. Except where the examiner finds that the furnishing of copies is impracticable, a copy of each exhibit, in addition to the original, shall be filed with the examiner for the use of each other party to the proceeding. The examiner shall advise the parties as to the exact number of copies which will be required to be filed and shall make and have noted on the record the proper distribution of the copies.

(7) Official notice. Offical notice will be taken of such matters as are judicially noticed by the courts of the United States and of any other matter of technical or scientific fact of established character: Provided, That the parties shall be given adequate notice, at the hearing or by reference in the examiner's report or tentative order or otherwise, of matters so noticed, and shall be given adequate opportunity to show that such facts are erroneously noticed.

(8) Offer of proof. Whenever evidence is excluded from the record, the party offering such evidence may make an offer of proof, which shall be included in the transcript. The offer of proof shall consist of a brief statement describing the evidence to be offered. If the evidence consists of a brief oral statement or of an exhibit, it shall be inserted into the transcript in toto. In such event, it shall be considered a part of the transcript if the Secretary decides that the examiner's ruling in excluding the evidence was erroneous. The examiner

shall not allow the insertion of such evidence in toto if the taking of such evidence will consume a considerable length of time at the hearing. In the latter event, if the Secretary decides that the examiner's ruling in excluding the evidence was erroneous, the hearing shall be reopened to permit the taking of such evidence.

(f) Oral argument before examiner. Oral argument before the examiner shall be allowed unless the examiner finds that the denial of such argument will not deprive the parties of an adequate opportunity for oral argument subsequently in the proceeding. Such argument may be limited by the examiner to any extent that he finds necessary for the expeditious disposition of the proceeding.

(g) Transcript. (1) During the period in which the proceeding has an active status in the Department, a copy of the transcript will be kept at the local office of Veterinary Services nearest to the place where the respondent resides or has his principal place of business. If there are two or more respondents and they are located in different localities, the copy of the transcript shall be kept at the local office of Veterinary Services nearest to the place where the hearing was held. This copy will be available for examination during official hours of business at the local office, but it shall remain the property of the Department and may not be removed from said office.

(2) Parties to the proceeding who desire a copy of the transcript of the hearing may place orders at the close of the hearing with the reporter, who will furnish and deliver such copies direct to the purchaser upon payment therefor at the rate per page provided by the contract between the reporter and the Department for such reporting service.

§ 123.11 Depositions.

(a) Application for taking deposition. Upon the application of a party to the proceeding, the examiner, at any time after the filing of the order to show cause, may authorize under the facsimile signature of the Secretary, the taking of testimony by deposition. The application shall be in writing and shall be filed with the hearing clerk and shall set forth: (1) the name and address of the proposed deponent; (2) the name and address of the person (referred to hereinafter in this section as the "offcer"), qualified under the rules in this part to take depositions, before whom

the proposed examination is to be made; (3) the proposed time and place of the examination, which shall be at least 15 days after the date of the mailing of the application; and (4) the reasons why such deposition should be taken.

(b) Examiner's authorization for taking deposition. If the examiner is satisfied that good cause for taking the deposition is present, he may authorize its taking. The authorization shall be filed with the hearing clerk and shall be served upon the parties and shall state: (1) the time and place of the examination (which shall not be less than 10 days after the filing of the authorization); (2) the name of the officer before whom the examination is to be made; and (3) the name of the deponent. The officer and the time and place need not be the same as those suggested in the application.

(c) Qualifications of officer. The deposition shall be made before the examiner, or before an officer authorized by the law of the United States or by the law of the place of the examination to administer oaths, or before an officer authorized by the Secretary to administer oaths. No deposition shall be made before an officer who is a relative (within the third degree by blood or marriage), employee, attorney, or counsel of any party, or who is a relative (within the third degree by blood or marriage), or employee of any attorney or counsel for any party or who is financially interested in the result of the proceeding: Provided, however, That an officer who is an employee of the Department and is not a relative of any such party, attorney, or counsel may take depositions in any proceeding under the regulations.

(d) Procedure on examination. (1) The deponent shall be examined under oath or affirmation and shall be subject to cross-examination. The testimony of the deponent shall be recorded by the officer or by some person under his direction and in his presence. In lieu of cross-examination, parties may transmit written cross-interrogatories to the officer prior to the examination, and the officer shall propound such crossinterrogatories to the deponent.

oral

(2) The applicant must arrange for the examination of the witness either by oral examination or by written interrogatories. If it is found by the examiner, upon the protest of a party to the proceeding, that such party has his residence and his place of business more

than 100 miles from the place of the examination and that it would constitute an undue hardship upon such party to be represented at the examination, the applicant will be required to conduct the examination by means of interrogatories. When the examination is conducted by means of interrogatories, copies of the interrogatories shall be served upon the other parties to the proceeding at least five days prior to the date set for the examination, and the other parties shall be afforded an opportunity to file with the officer cross-interrogatories at any time prior to the time of the examination.

(e) Signature by witness. The transcript of the deposition shall be read to or by the deponent, unless such reading is waived by the parties and the deponent. Any changes which the deponent wishes to make shall be entered upon the deposition by the officer, with a statement of the reasons given by the deponent for such changes. The deposition shall be signed by the deponent, unless the parties by stipulation waive such signing, or unless the deponent is ill or cannot be found or refuses to sign. If the deponent does not sign, the officer shall sign and shall state on the record the reason why the deponent did not sign. In such case the deposition shall be as valid as though signed by the deponent, unless the examiner finds that the reason given by the deponent for his refusal to sign requires rejection of the deposition in whole or in part.

(f) Certification by officer. The officer shall certify on the deposition that the deponent was duly sworn by him and that the deposition is a true record of the deponent's testimony. He shall then securely seal the deposition, together with two copies thereof, in an envelope and mail the same by registered mail to the hearing clerk.

(g) Use of depositions. A deposition taken in accord with the provisions of this part, or in accord with the provisions of the rules of Civil Procedure of the courts of the United States, may be used in a proceeding under the rules in this part if the examiner finds that the evidence is otherwise admissible and (1) that the witness is dead; or (2) that the witness is at a greater distance than 100 miles from the place of hearing, unless it appears that the absence of the witness was procured by the party offering the deposition; or (3) that the witness is unable to attend or testify because of age, sickness, infirmity, or im

prisonment; or (4) that the party offering the deposition has endeavored but has been unable to procure the attendance of the witness; or (5), in any event, upon application and notice that such exceptional circumstances exist as to make it desirable, in the interests of justice and with due regard to the importance of presenting the testimony orally before the examiner, to allow the deposition to be used. If any part of a deposition is put in evidence by a party, any other party may require the production of the remainder, or any other portion, of the deposition.

§ 123.12

The examiner's report.

(a) Filing the transcript of evidence. As soon as practicable after the close of the hearing, the reporter shall transmit to the hearing clerk the original of the transcript of the testimony and the original exhibits introduced in evidence at the hearing and as many copies of the transcript as may be required by the Division. Upon receipt of the copies of the transcript, the Department will send a copy to the appropriate local office, as provided in § 123.10 (g), and will advise each party to the proceeding as to the date on which the transcript was filed with the hearing clerk. At the same time the reporter sends the transcript and copies thereof to the hearing clerk, he shall also transmit a copy of the transcript to each party who shall have filed an application therefor as provided in § 123.10(g).

(b) Proposed findings of fact, conclusions and order. Within 10 days after receipt of notice that the transcript has been filed, each party may file with the hearing clerk proposed findings of fact, conclusions, and order, based solely on the record, and a brief in support thereof.

(c) Examiner's report. The examiner, within a reasonable time after the termination of the period allowed for the filing of proposed findings of fact, conclusions, and orders and briefs in support thereof, shall prepare upon the basis of the record and shall file with the Hearing Clerk, his report, a copy of which shall be served upon each of the parties.

(d) Exceptions. Within 20 days after receipt of the examiner's report, the parties may file exceptions to the report. Any party who desires to take exceptions to any matter set out in the report shall transmit his exceptions in writing to

the Hearing Clerk, referring to the relevant pages of the transcript, and suggesting a corrected finding of fact, conclusion, or order. Within the same period of time, each party shall transmit to the Hearing Clerk a brief statement in writing concerning each of the objections taken to the action of the examiner at the hearing, as set out in § 123.10, upon which the party wishes to rely, referring, where relevant, to the pages of the transcript. A party, if he files exceptions or a statement of objections, shall state in writing whether he desires to make an oral argument thereon before the Secretary; otherwise, he shall be deemed to have waived such oral argument. § 123.13

The shortened procedure.

(a) Consent of parties. Whenever it appears to the examiner who is assigned to a proceeding that the proceeding can be more expeditiously handled under the informa procedure provided for in this section, he shall suggest to the parties that they consent to the use of such procedure. Except where oral hearing has been waived by failure to request it in proper time or otherwise, parties are free to consent to such procedure if they choose; declination of consent will not affect or prejudice the rights or interests of any party. A party, if he has not waived oral hearing, may consent to the use of the shortened procedure on the condition that the statements of fact be submitted in the form of depositions rather than affidavits. In such case, if the other parties agree, depositions shall be required to be filed in lieu of affidavits. If any party who has not waived oral hearing does not consent to the use of the shortened procedure, the proceeding will be set for oral hearing. The request that the shortened procedure be used need not originate with the examiner; any party may address a request to the examiner, asking that the shortened procedure be used. The examiner, in his suggestion to the parties, will set a short period of time in which the parties may indicate their consent to the shortened procedure; at the end of that period the examiner will notify the parties that the shortened procedure will or will not be used. All requests, suggestions, and notices mentioned in this section shall be filed with the hearing clerk.

(b) Complainant's opening statement. Within 20 days after receipt of notice that the shortened procedure will be

used, the complainant shall file with the hearing clerk, in triplicate, in support of the order to show cause, an opening statement of the facts. A copy of such document shall be served promptly by the hearing clerk upon the respondent. (c) Respondent's answering statement. Within 20 days after receipt of the complainant's opening statement, the respondent may file with the hearing clerk, in triplicate, in support of his answer, an answering statement of the facts. A copy of the answering statement shall be served promptly by the hearing clerk upon the complainant.

(d) Complainant's statement in reply. Within 10 days after receipt of the answering statement, the complainant may file with the hearing clerk, in triplicate, a statement in reply, which shall be confined strictly to replying to the facts and arguments set forth in the answering statement.

(e) Contents of statements. As used in this section, the term "statement” includes (1) statements of fact, signed and sworn to by persons having knowledge of those facts; (2) any documents filed as a part of the proof of the alleged facts (which documents shall be properly identified by verified statements in the statement filed or otherwise authenticated in such a manner that they would be admissible in evidence at an oral hearing under the rules of practice in this part); and (3) briefs containing arguments to sustain the contentions of the party submitting the statement. When practicable, the documents which constitute the record of any transaction in dispute should be made a part of the statement.

(f) Verification. Any facts stated in the statement must be sworn to (before a person legally authorized to administer oaths or before a person designated by the Secretary for the purpose) by a person who states in the affidavit that he has actual knowledge of the facts. Except under unusual circumstances, which shall be set forth in the affidavit, any such person shall be one who would appear as a witness if an oral hearing were held. The original of each document must show the signature, capacity, and impression seal (if the officer is required by law to have a seal) of the officer administering the oath and the date thereof. Copies must bear a notation that the original shows the data required in this respect. If a party elects to do so, he may file his statement of facts in the